Questions pertaining to immigration law often arise in a criminal lawyers practice, especially in multi-ethnic cities such as Montreal. The most important piece of legislation that governs this matter is Canada’s Immigration and Refugee Protection Act.
The first question one must ask is in which category does the individual fall into:
A Foreign National is defined as a person who is not a Canadian citizen or a permanent resident, and includes a stateless person. A simple way of determining this is by looking at the person’s social insurance number. Numbers beginning with 2 indicate a permanent resident, and those beginning with 9 indicate a foreign national.
A Permanent Resident is defined as a person who has acquired permanent resident status and has not subsequently lost that status under section 46. This is generally easy to determine, as permanent residents usually knows whether they hold this status and possesses a card identifying them as so.
Types of Convictions
Serious Criminality is defined as an offence punishable by a maximum imprisonment of 10 years or more. This also covers offences committed outside of Canada that if committed in Canada would fall under this category. As an example, a person convicted of sexual assault with a weapon that receives a 4 year sentence would fall under this category, as this offence is punishable by a maximum term of 14 years imprisonment.
Criminality is defined as one indictable offence OR two offences under any Act of Parliament not arising out of a single occurrence, most commonly manifested as purely summary offences(petty crimes) As an example, one assault punishable by indictable offence or two different incidents of shoplifting (summary offences).
Hybrid offences, which are punishable by way of indictment or summary conviction, are deemed indictable offences under the IRPA, even if the individual was prosecuted by summary conviction.
Note that 810 peace bonds and absolute or conditional discharges are not reported under the IRPA and will not fall in any of the two categories.
The Effect of the Convictions
A foreign national has the most precarious status in Canada following a conviction. Should a foreign national commit offences of Criminality or Serious Criminality, a report on inadmissibility is made which may lead to a removal order. The decision that is rendered cannot be appealed.
A permanent resident is only subject to a removal order if convicted of a crime of Serious Criminality. There is no right of appeal unless the individual was sentenced to a term of imprisonment of less than 2 years.
Applying for Citizenship
In order to apply for citizenship, the general rule is that the applicant must have resided in Canada for a total of 3 years during the 4 years preceding the day before the application is submitted.
What doesn’t count in the calculation of the duration of residence are the following:
1) Probation orders, including the probationary period in a conditional discharge
2) Parole ( release from prison)
3) Detention time in a correctional facility.
4) Period of time in which a person is charged with an indictable offence (pending case) or an offence under section 29(2) or (3) of the Citizenship Act.
This also means, that applicants have to wait until they are no longer subject to one of those categories before undertaking the oath of citizenship.
Note that an 810 peace bond or an absolute discharge is not an obstacle to citizenship application.